Pollution of foreign property through disposal of objects in the ravine

Facts

The case concerns Schmid, who managed a property in Kriens bordering the edge of the Streuibachtobel ravine until the beginning of September 1961. Upon moving out of the property, Schmid transported various worthless objects, such as boards, empty barrels, canisters, and tin cans, into the ravine onto the property of the Fischer heirs. The Fischer heirs then filed a criminal complaint against Schmid for polluting the ravine.

The High Court of the Canton of Lucerne found Schmid guilty of intentional pollution of waters (Art. 4 paras. 1 and 2 GSchG) and intentional pollution of foreign property (§ 37 luz. EG StGB) and sentenced him to a fine of CHF 300.--.

Schmid filed a nullity appeal with the request to be acquitted.

Considerations

The Court of Cassation first dealt with the question of whether § 37 luz. EG StGB, which criminalizes the pollution of foreign property, violates federal law. The Court of Cassation concluded that this was not the case.

While the Criminal Code contains an extensive title on "criminal acts against property", the federal legislator did not intend to regulate attacks on property exhaustively. From this perspective, there is nothing to prevent a cantonal misdemeanor penalty for the pollution of foreign property.

Furthermore, the Court of Cassation examined whether § 37 luz. EG StGB can be applied to acts…